Editor's report: We have been sitting on this report of the Parliamentary Committe on Legal Affairs that was published last year on the judicial reforms that are in needed in the Zambian justice system. Minor edits have been made for ease of reading.
In any democratic society, the Judiciary, as one of the three Arms of the State, is at the centre of ensuring that the rule of law, constitutionalism and protection of human rights prevail by providing checks and balances to the exercise of power by the other two Arms of State (the Legislature and the Executive). It was, therefore, critical for the Judiciary to remain independent in the context of the separation of powers if it was to effectively discharge its functions.
In the recent past, there had been growing calls for the reform of the Judiciary in Zambia by civil society, political parties, the church and individuals of varied professional and social backgrounds. One prominent Zambian jurist observes thus: “In Zambia, it is generally agreed by all stakeholders that the judicial system needs reform to make it more accountable, independent, and able to deliver justice efficiently and effectively.”
It was in light of the foregoing that your Committee resolved to undertake this study in order to try to understand the reasons behind these increasing calls for reform of the judicial system, contribute to the on-going debate and generate some recommendations on the possible way forward.
The purpose of this study was: (i) to ascertain the policy and legal objectives underpinning judicial reforms in Zambia; (ii) to appreciate the status of on-going judicial reforms, if any ; (iii) to understand the administration and management of the Judiciary; (iv) to understand the process of appointment, recruitment and training of judicial officers and their tenure; (v) to assess the extent of judicial independence in Zambia vis-a-vis institutional and financial autonomy; (vi) to understand the administration of justice in Zambia and challenges thereof, if any; (vii) to assess the levels of public confidence in the judicial system; (viii) to appreciate the challenges being faced by the Judiciary in the dispensation of justice, if any; and, (ix) to make appropriate recommendations as regards possible solutions to the challenges identified.
The witnesses who appeared before the Committee for this study were the following: the Chief Administrator (Judiciary); the Judicial Service Commission; the Judicial Complaints Authority; the Magistrates and Judges Association of Zambia(MAJAZ); the Ministry of Justice; the Zambia Law Development Commission; the Law Association of Zambia; the Human Rights Commission; Council of Churches in Zambia; (CARITAS Zambia; Transparency International Zambia; Southern Africa Centre for the Constructive Resolution of Disputes (SACCORD); University of Zambia School of Law; and, Zambia Police Force.
Summary of Submissions by Witnesses
The witnesses who appeared before the Committee raised some concerns and made some observations as set out below.
Policy and/or Legislative Framework Underlying current Judicial Reforms
Most stakeholders were not aware of reforms being undertaken or implemented by the Judiciary in line with any specific policy or legal objectives. Some stakeholders were, however, aware that the Judiciary was implementing some regulatory reforms aimed at streamlining the justice delivery procedures. These include the recruitment of Research Advocates, the review of the civil procedure rules and the training of some judicial officers, especially at the lower levels, among others.
All stakeholders were of the view that the regulatory reforms, while welcome, fell far short of resolving the serious challenges that the country's judicial system was facing, and comprehensive reforms ought to be undertaken without delay. Further, following various pronouncements regarding its intentions to carry out reforms in the Judiciary, the Government has constituted a Committee on Judicial Reforms at the Ministry of Justice.
Appointment and Recruitment of Judicial Officers
It was submitted to the Committee that the recruitment and appointment procedures for holders of judicial office must be reviewed to make them more open and transparent.
With particular regard to the holders of judicial office at High Court and Supreme Court level, it was argued that there was need to make the procedure for appointment and promotion very clear in order to ensure that those who excelled were allowed to rise above those who did not meet the mark. Further, the procedures and the tenure of office should be designed in such a manner as to attract the best among the legal fraternity in the country to ascend to the bench.
It was also proposed that rather than these senior judicial officers being appointed by the President, an independent appointments body should be set up. Needless to say, this requires constitutional amendments to be effected.
Vetting of Judges
One key stakeholder was of the strong view that in light of the loss of confidence in the Judiciary, and especially in judicial officers, there was need to subject serving Judges to a process of vetting for purposes of ascertaining suitability to continue to hold office as a matter of urgency.
This screening process should amongst other things test: i) whether the judge met the constitutional criteria for appointment as a judge; ii) the past work record of the judge, including prior judicial pronouncements, competence and diligence; iii) any pending judgments and/or rulings yet to be delivered by the judge; and, iv) pending complaints or other relevant information received from any person or body, including the Law Association of Zambia; the Anti-Corruption Commission; the Judicial Complaints Authority; the Police; or the Judicial Service Commission.
It was anticipated that this process would require a constitutional amendment to allow for such scrutiny and vetting. Therefore, it was recommended that the relevant Articles of the Constitution be amended as part of the on-going Constitution Review process to permit for the establishment of a Vetting Tribunal to undertake the task of testing the suitability of sitting Judges to continue to hold high judicial office. In this vein, a Commission of Inquiry should be immediately established to get submissions from members of the public and aggrieved parties in relation to the administration of justice in order to facilitate the establishment of the Vetting Tribunal.
This proposal should be attended to in the immediate term rather than waiting for the finalisation of the current Constitution Review process so that public confidence could be restored in the Zambian justice system. This initiative should be undertaken because it presented the best opportunity to exonerate the innocent and should be instrumental in isolating the officers that were attracting bad publicity and loss of confidence in the Judiciary.
Composition of the Judicial Service Commission
There was urgent need to enhance the independence and representative character of the Judicial Service Commission. In this regard, the membership of the Commission should be revised as a matter of urgency in order to ensure that various interest groups were adequately represented thereon.
Institutional and Financial Autonomy
All stakeholders who made submissions to your Committee noted that currently, the Judiciary was not institutionally and financially autonomous because of the institutional arrangements in which it existed and operated: the Judicial Service Commission was linked to the Public Service Commission and could hardly be said to be an autonomous institution.
More importantly, the budget of the Judiciary was subjected to ceilings and arbitrary reductions by the Ministry of Finance just like any other Government ministry. In these circumstances, it would be folly to expect that meaningful reform could be undertaken without addressing the financial aspects that impacted heavily on the efficiency of the system.
Witnesses to the Committee appreciated that the Judiciary had neither enjoyed fiscal independence nor determined and controlled the budgetary and expensing aspects of its operations. This was not desirable and ought not be the case as it meant that the Judiciary’s programmes and activities, which should be determined independently by the Judiciary itself, were subjected to vetting by another institution.
Further, the disbursement of funds to the Judiciary was erratic and the funds were not released in accordance with the approved budget; in fact one estimate was that only about 70% of the approved budget was released to the Judiciary annually, and in some cases even much less was released.
Operational Independence of the Judiciary
Some stakeholders argued that despite the fact that the Judiciary was one of the three Arms of Government and the provisions in the Constitution regarding its independence, in practice the Judiciary was treated as if it were just another department of the Executive without any real independence. In particular, some witnesses submitted that there were common public perceptions that judicial independence was severely compromised whenever the Judiciary handled cases in which politicians, especially those from the ruling party, had interests, such as election petitions.
Backlog of Cases
The Judiciary was facing a critical problem of a huge backlog of cases pending before the Courts, which must be expeditiously tackled with tenacity and innovativeness. In some cases, pending judgments and rulings before a number of judicial officers had remained as such for long periods of time, resulting in the denial of justice to a segment of litigants and accused persons. Issues had, therefore, been raised relating to the accountability of the Judiciary to the public, the quality of decisions passed by the Zambian Courts and generally about the integrity of those that were entrusted with the responsibility of administering justice in the country.
Delayed Delivery of Judgments
Most stakeholders stated that another major challenge faced by the Judiciary in the administration of justice was delayed delivery of judgments. This had been the main cause of loss of confidence by the general public in the justice system.
An examination of the causes for delayed justice showed that this arose on account of various reasons. The courts were not well staffed both in terms of judicial officers and support staff. The country also had shortages of court infrastructure coupled with lack of readily available reference materials for use by Judges and Magistrates. Sadly, the Judiciary’s funding problems sometimes went to such extremes that in some cases, there was no stationery to be used in finalising cases which were already tried by the courts.
Some witnesses informed the Committee that the situation sometimes got so bad that some judicial officers had attested to the use of personal funds to procure stationery for use in writing judgments.
Public Perceptions of Incompetence, Political Interference and Corruption in the Judiciary
There were continuing and persistent perceptions among the members of the general public that incompetence and corruption had permeated the judicial system. Further concerns were expressed about political interference in the performance of duty by judicial officers in certain instances.
Need for Comprehensive Reform of the Whole Legal System
Some stakeholders submitted that some of the shortcomings or failures did not arise solely from the Judiciary, but were symptomatic of a legal system in need of reform and transformation. The problem transcended the Judiciary and encompassed the whole legal system, ranging from the lawyers that plied their profession in the courts, the police and security agencies whose functions fed into the system, the prisons service which resulted from the judicial process at the tail-end, the National Prosecutions Authority and Legal Aid Board and such other related agencies. However, it was recognised that the Judiciary was at the centre of these concerns and any meaningful reform should start from and be focused on the Judiciary.
Enhancing the Role and Functions of the Judicial Complaints Authority
Concerns were expressed by some witnesses that the Judicial Complaints Authority did not appear to be performing a positive role of processing and addressing complaints against the holders of judicial office.
It was stated that one of the weaknesses that the Authority suffered from was that it merely made recommendations in relation to punitive measures against erring judicial officers to the appropriate authorities, but did not impose sanctions against erring officers as it had no powers to discipline such officers. The appropriate authorities could then either implement the Authority’s recommendations or simply ignore them.
Further, it was argued that the Judiciary itself was not responsive to the inquiries by the Authority which rendered the Authority moribund and useless because its role had been undermined by the structure within which it ought to be operating.
Inventory/State of the Administration of Justice Reports
It was observed by some stakeholders that even though there had been repeated complaints and calls for the delivery of justice to be expedited from the legal fraternity and the public at large, the true extent of the delays, if any, was not known.
In this regard, an inventory should be carried out to ascertain the actual state of the justice delivery system. In fact, the state of the administration of justice was a matter that should be audited annually and the information in that regard be disclosed to the relevant stakeholders and the public generally.
This was necessary to inculcate a culture of accountability on the part of holders of judicial office. The inventory would disclose the nature and extent of any delays in the delivery of justice and possibly outline the causes of such delays. The outcome of such an inventory would inform the recurrent debate and never ending criticisms that had been leveled at the judicial system and assist in framing possible solutions.
Peer Review Annual Accountability Reports
Some stakeholders submitted that there were presently no mechanisms within the fabric of the Judiciary to address performance management in a manner that dealt effectively with cases of inefficiency and lack of capacity. This ought to be addressed effectively through a peer review mechanism.
Creation of an Additional Appellate Court
Some stakeholders submitted that there was need for another autonomous body apart from the Supreme Court to deal with appeals as international standards required two superior courts, which meant two tiers of appeal. However, this would only be possible with a constitutional amendment.
Physical Conditions and Facilities of Courts
It was submitted by all stakeholders that the Judiciary had continued to operate in pre independence court buildings which were too small and not conducive for the dispensation of justice in the modern era.
The number of High Court buildings was also limited. The High Court had permanent buildings only in Livingstone, Lusaka, Kabwe, Ndola and Kitwe. In places where the High Court had no permanent presence, the court only sat as a circuit court, which happened about once every month, often for criminal matters. This had negative implications for cases where convictions by the Subordinate Court had to be confirmed by the High Court. It was reported that confirmation sometimes took as long as six months, which contributed not only to the backlog of cases in the High Court, but also to the increase in the prison population.
Further, some delays in the disposal of cases occurred because of the low number of Judges as compared to the increased case load, especially in Lusaka and the Copperbelt. There was also an inadequate number of adjudicators at the lower ranks and inadequate support staff due to recruitment constraints. Additionally, the Industrial Relations Court (IRC) was only operating in Ndola and Lusaka. This had posed a big challenge to indigent litigants who may have to travel from far-flung areas to Lusaka to have their matters heard.
There was a proposal within the Judiciary to introduce circuiting of Industrial Relations Court Judges. While a circuiting IRC was welcome, it would entail more funding to the IRC for the Judges to be circuiting. It would also entail construction of Industrial Relations Court facilities in the places identified as Industrial Relations Court circuiting points.
Limited Access to Information and Literature
While the complete volume of the Laws of Zambia may be available in all courts, there was a challenge of availability of amendments to the laws. Research indicated that although the Judiciary had been making deliberate efforts to ensure that the Supreme Court, High Court, and Subordinate Courts in urban areas were updated with the latest amendments to the law, these were not readily available to courts in far-flung areas.
There was also a dearth of expert commentaries and other literature. The recruitment of Research Advocates at High Court and Supreme Court levels was aimed at helping to resolve this problem, but it was doubtful if this objective would be achieved without the courts being equipped with necessary library facilities and materials. At the lower levels, Research Advocates were not available, leaving the Magistrates at the Subordinate and Local Courts to their own devices.
Limiting Legal Provisions
It was submitted that another major challenge was that the Subordinate Courts had limited sentencing jurisdiction in criminal matters and where the stipulated sentence was in excess of the limit of a specific court, the record would be sent to the High Court for confirmation and sentencing after conviction. This tended to cause delays and clog the High Court, especially with the currently increasing levels of sexual offences whose minimum sentences were in excess of the jurisdiction of the Subordinate Courts.
The Committee was informed that although an electronic record and case management system had been introduced through the Zambia Justice Information System (ZAJIS), there was still a lot to be done as only ten courts and thirteen registries along the line of rail had benefited from this reform so far.
The Committee learnt that this project was donor funded. Further, most court registries did not comply with regulations stipulated in the National Archives Act of Zambia as regards storage of records, which had contributed to bad records management in the court registries. The court registries also lacked guidance on how to manage records due to lack of a records management policy and the failure to apply internationally recognised records management standards. Storage space in the registries was, therefore, a major challenge.
The Case of Magistrates
Some witnesses noted that in the discourse on judicial independence and judicial reform, Magistrates were often forgotten, with the focus being only on judicial officers serving on the higher bench. The stakeholders noted that Magistrates played a crucial role in the entire judicial system, given that they handled the vast majority of criminal cases and made key decisions in these matters.
Subordinate courts were also the places where the most impoverished, the powerless and the defenceless in society could access justice. If citizens had no confidence in Magistrates and their court officials, perceiving them to be biased, this could have a significant detrimental effect on society. Not only would it impact adversely on the administration of justice, but it also carried with it significant social and economic consequences, including the potential for frustrated members of the public to resort to the unfortunate and unlawful practice of instant justice.
Committee’s Observations and Recommendations
Noting the multiplicity of submissions by various stakeholders, your Committee wishes to make the observations and recommendations set out hereunder.
a) The Committee wishes to applaud the efforts being made by the Judiciary towards regulatory reforms despite working under very difficult conditions. In this light, the Committee implores the Government to financially support the efforts aimed at providing research assistance to all adjudicators, computerisation of the records of the Judiciary, training of judicial officers and review of the civil procedure rules, among others. Nevertheless, the Committee agrees that there is need for serious and fundamental reforms in the Zambian judicial system in order for it to truly be the beacon of justice that it is meant to be.
b) The Committee notes that most of the recommendations for judicial reform hinge on constitutional reform. This means that most of the key proposals on judicial and legal reforms cannot be undertaken if the constitutional reform process is not successfully concluded. The Committee, therefore, calls upon the Government to expeditiously lead and facilitate the conclusion of the constitution review process and, by implication, the judicial reform process. The judicial reform process, like the constitution review process, should be transparent and take account of the views of all stakeholders, especially with regard to critical issues such as transparent appointment procedures, security of tenure and remuneration of judicial officers.
c) The Committee, cognisant of the fact that the backlog of pending cases is so huge that it cannot be effectively dealt with even if the current establishment of High Court Judges were to be filled, recommends that, as a matter of urgency, there should be an amendment of the law to provide for the appointment of High Court Commissioners for a period of no more than three years, for the purpose only of addressing this problem of case backlog. In a similar vein, the jurisdiction of the subordinate Courts should be revised expeditiously so that the delays of cases tried by the Subordinate Courts on account of the requirement for the High Court to confirm the convictions and sentence the convicts could be eliminated. The Committee also strongly recommends that deliberate efforts should be made to scale up the utilisation of alternative dispute resolution (ADR), such as mediation and arbitration, as opposed to litigation which tends to clog the system unnecessarily.
d) The Judicial Complaints Authority should be redesigned and realigned so that it can perform an independent and effective policing role. The jurisdiction to discipline judicial officers should be moved from the Judicial Service Commission to the Judicial Complaints Authority, and the Authority should be given the mandate to deal fully with complaints without subordinating that function to any body, person or entity. Sanctions against erring judicial officers must be clearly stipulated and implemented. In this regard, relevant legislation should be amended, within the subsisting constitutional arrangements, to enhance the roles and powers of the Authority. Additionally, the Authority should be vested with powers to publish its findings and decisions in the media. This would act as a deterrent against breaches of the code of conduct by judicial officers who would fear exposure. Currently, there is no such exposure of erring judicial officers.
e) The Committee recommends that in order to enhance the institutional independence of the Judiciary, the Judicial Service Commission should urgently be delinked from the Public Service Commission and be recreated as an autonomous Service Commission.
f) The Committee is of the view that judicial officers must be encouraged, through continued awareness of the importance of abiding by the Code of Conduct, to ensure that they conduct themselves independently, impartially and with integrity. In this vein, judicial officers should ensure that they exercise professionalism while matters are before them, to avoid unnecessary adjournments and delays. In particular, the Committee notes that courts located in remote areas are more prone to unprofessionalism and failure by officers to abide by the Code of Conduct; therefore, such courts must be placed under stricter supervision by senior officers in charge.
g) An immediate inventory exercise should be launched and a deliberate policy should be put in place to require that an annual and periodic State of the Administration of Justice Report be compiled and published for public consumption in order to enhance transparency and accountability among judicial officers and the Judiciary as a whole. Similarly, a system should be introduced where the performance of judicial officers would be assessed on a frequent basis through peer reviews or the compiling of accountability reports of such types as other jurisdictions had implemented. Such a system should be designed with targeted consequences for erring officers. The Committee also agrees that vetting of serving judicial officers should be undertaken without delay in the quest to rebuild public confidence in the Judiciary and in order to assist in achieving the intended goal of speedy delivery of justice.
h) The Committee recognises the inadequacy of the funding to the Judiciary over the years, which has practically crippled the Institution’s operations. In this regard, the Committee recommends that the fiscal autonomy of the Judiciary should be firmly established to allow for enhanced independence of the institution and in order to remove the perception and possibility that the Executive can influence the judicial process by the hold they may have on the availability and disbursement of funds to the Judiciary. In short, the financial arrangements relating to the Judiciary should be revised expeditiously to enable the Judiciary enjoy some autonomy with regard to its budget and take its rightful place as an independent Arm of the State. In this light, the Committee implores the Government to seriously consider this matter with due dispatch. Related to the issue of funding for the Judiciary, your Committee recommends that the Government must prioritise the improvement of Judiciary infrastructure countrywide without further delay.
i) The Committee observes with concern that there is no dedicated judicial college for Judges or Magistrates to train them in various aspects of the performance of their functions. This is anomalous and should be urgently rectified through the design and implementation of training modules and related training materials for lawyers and judicial officers as a follow up to and taking into account the work already done by experts on Legal and Judicial Education, Situational and Gap Analysis engaged by the Access to Justice Programme under the Ministry of Justice.
j) The Committee, while applauding the initiative of computerising records in the Judiciary, is disappointed that the computerisation project (ZAJIS) has been donor funded. The Committee notes that this project is too important to be left to donor funding. The Committee, therefore, recommends that in order to promote the independence of the Judiciary and ensure the roll out and sustainability of the computerisation project, the Government should take over funding of this project with immediate effect.
k) The Committee is in complete agreement with the assertion that Magistrates tend to be forgotten in the discourse relating to judicial independence and judicial reform. In this regard, the Committee strongly recommends that the role played by Magistrates be given due recognition as it is critical to the proper dispensation of justice. In this regard, the Committee recommends that the legal provisions relating to security of tenure, conditions of service, career progression, among others, for the Judges of High Court and Supreme Court must also apply, mutatis mutandis, to Magistrates. The Committee reiterates that it is neither reasonable nor acceptable for the law to discriminate against Magistrates in the manner that it currently does.